Maere v Minister for Home Affairs

the non-revocation decision 10 It is convenient to set out the relevant content of the non-revocation decision and the Assistant Minister's reasons. 11 The non-revocation decision, under the heading "Non-revocation outcome", records that having considered all matters, including an assessment of the character test, and all the evidence before him provided by the applicant, the Assistant Minster was not satisfied that the applicant passed the character test and that there was not "another reason" why the cancellation decision should be revoked. 12 The non-revocation decision was accompanied by the reasons. The Assistant Minister concluded at [9] of the reasons that he was not satisfied that the applicant passed the character test (this being one of the necessary bases for revocation under s 501CA(4)(b)(i)). 13 The reasons then addressed whether or not the Assistant Minister was satisfied that there was another reason why the cancellation should be revoked (this being the other possible basis for revocation under s 501CA(4)(b)(ii)). 14 At [12] the Assistant Minister summarised the reasons that had been put forward by the applicant in support of revocation of the cancellation decision. Those reasons were as follows: (1) it is in the best interests of his minor daughter; (2) he has ties to Australia through his family here, which consists of his adult daughter, two brothers, a half-brother and extended family members; (3) he also has ties through his long residence in Australia, his friendships with members of the Australian community and his contribution to the Australian community through his employment; (4) he is remorseful and will not reoffend, with help from ongoing psychological counselling; and (5) he has concerns about returning to New Zealand because of his long term absence and the lack of support for him there. 15 The Assistant Minister then went on to consider those matters under the following headings: (1) Best interests of minor children (at [13]-[17]); (2) Strength, nature and duration of ties (at [18]-[26]); (3) Extent of impediments if removed (at [27]-[33]); and (4) Protecting the Australian community (at [34]-[72]). 16 Under the last of these headings, the Assistant Minister considered the applicant's criminal conduct (at [35]-[55]) and risk to the Australian community (at [56]-[72]). 17 The Assistant Minister's reasoning was adequately summarised in the submissions of the Minister and, with minor amendments, that summary is adopted in what follows. 18 In relation to the best interests of the applicant's minor children, the Assistant Minister found that it would be in the best interests of the applicant's daughter (born in November 2001) if the cancellation decision was revoked. However, the Assistant Minister gave this matter "some less weight" because the applicant does not have daily care and responsibility of his daughter, she will be an adult in around two years' time, and she will be able to maintain written communication with the applicant in the meantime (at [17]). 19 In relation to the strength, nature and duration of the applicant's ties to Australia, the Assistant Minister accepted that the applicant's immediate and extended family in Australia may experience emotional hardship if the cancellation decision were not revoked (at [23]). The Assistant Minister accepted that the applicant's friends and work colleagues would be disappointed if his visa cancellation is not revoked (at [25]). The Assistant Minister accepted that the applicant has made a contribution to the Australian community through his employment (at [26]). 20 In relation to the extent of impediments to the applicant if removed from Australia, the Assistant Minister accepted that separation from the applicant's well-established social and employment networks, and especially separation from his family and children, is likely to exacerbate the applicant's depression (at [30]). The Assistant Minister accepted that there will need to be a period of adjustment if the applicant returned to New Zealand, and this may cause him hardship, at least in the short term. However, while the applicant is likely to have some difficulty in re-establishing himself in New Zealand, the Assistant Minister found that he has the ability and capacity to maintain a basic living standard there (at [33]). 21 In relation to the applicant's criminal conduct, the Assistant Minister noted that the applicant has a lengthy criminal history of offending in Australia and New Zealand involving violence, domestic violence and repeated driving offences (at [36]-[55]). In particular, the applicant's criminal offending in Australia included sentences of 12 months and 18 months' imprisonment in 2010 and 2012 for driving offences, a sentence of 2 years' imprisonment in 2003 for domestic violence (including aggravated burglary with an offensive weapon), and a sentence of 6 months' imprisonment for domestic violence in 2016. The Assistant Minister considered that the circumstances of the domestic violence offending were very serious. Overall, the Assistant Minister found that the applicant's criminal conduct "when considered cumulatively as well as in several individual incidents, to be very serious" (at [55]). 22 In relation the risk to the Australian community were the applicant to remain in Australia, a number of matters in the Assistant Minister's reasons are relevant to this application: (1) The Assistant Minister accepted that the factors referred to by the applicant (his dysfunctional upbringing, his advanced osteoarthritis diagnosed in 2013, depression and anxiety) are likely to have contributed significantly to his 2016 convictions. However, the Assistant Minister also noted that the applicant has a history of violence, including domestic violence, dating back as early as 1982 (at [59]). (2) The Assistant Minister acknowledged the rehabilitation that the applicant had undertaken. However, the Assistant Minister also found that the applicant had made claims of rehabilitation in 2003 and 2012, but had continued to offend (at [61]). (3) There was no specific evidence of the applicant undertaking any alcohol reform programs since 2013. Given the nexus between drinking and the applicant's offending, the Assistant Minister found that this increased the likelihood of the applicant reoffending (at [62]). The applicant's abstinence from drugs and alcohol in prison had not been tested in the community (at [66]). (4) The Assistant Minister acknowledged that the applicant is remorseful, but noted that he had expressed similar remorse to the courts and the Department in the past (at [63]). The Assistant Minister noted letters of support from the applicant's family and friends, but noted that the applicant's family and other support did not prevent him from reoffending, as recently as 2016 (at [64]-[65]). (5) The applicant continued to offend, even after warnings from the Department in 2010 and 2013 (at [67]). The applicant had repeatedly breached family violence orders and other judicial orders barring him from driving (at [68]). (6) A psychological report from July 2016 stated that the applicant's prospects of rehabilitation appeared low, and the likelihood of reoffending high at the time of assessment (at [70]). (7) The Assistant Minister found that there is an ongoing risk of the applicant reoffending. If he reoffended in a similar manner involving violence, that conduct may cause serious physical or psychological harm to members of the Australian community. If the applicant reoffended in the nature of his past driving offences, this poses a risk of physical harm to members of the Australian community, in particular road users (at [72]). 23 The Assistant Minister set out his conclusions at [73]-[80] of the reasons. The following paragraphs are of particular import: 76. In considering, in light of [the applicant's] representations, whether I was satisfied that there is another reasons why the [cancellation decision] should be revoked, I gave primary consideration to the best interests of [the applicant's] daughter. I found that her best interests would be served by the revocation of the [cancellation decision]. 77. Further, I find that the Australian community could be exposed to significant harm should [the applicant] reoffend in a similar fashion involving violence or serious driving offending. I could not rule out the possibility of further offending by [the applicant]. 78. I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the [cancellation decision] to cancel the visa, even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia for most of his life. 79. In reaching my decision about whether I am satisfied that there is another reason why the [cancellation decision] should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interest of his child as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment and familial ties to Australia, and the hardship [the applicant], his family and social network will endure in the event the [cancellation decision] is not revoked.

application for judicial review 24 The grounds set out in the applicant's application are wide and varied but each is completely unparticularised. The applicant's written and oral submissions made no specific reference to those grounds and no particularisation of them was otherwise given. In the absence of particularisation, the grounds specified cannot and do not assist the applicant in establishing jurisdictional error. 25 The applicant's written submissions were highly ambiguous. Much was contained in those submissions which, if read literally, was supportive of the Assistant Minister's decision. Other extracts in the submissions had the appearance of having been extracted from other submissions made in furtherance of unrelated applications. 26 The written submissions contained further broad but completely unparticularised allegations of error. It was alleged that the Assistant Minister failed to make findings but the findings that should have been made were not identified. It was alleged that the applicant was denied procedural fairness but no particularisation was given. It was asserted that the statutory task required by the Act was not carried out, but how that was so was not specified. None of those allegations need further be considered because without particularisation it is impossible to come to the view that there is merit in any of them. 27 At [7] of the applicant's written submissions it is said that a number of matters were raised by the applicant in his submissions to the Assistant Minister. The suggestion is that these are matters that should have been taken into account but were not. However, in his oral submissions the applicant clarified that the matters raised were matters that were being raised before the Court to demonstrate the unfairness of the non-revocation decision rather than matters that had been raised in representations made to the Assistant Minister. 28 The applicant's written submissions at [9] state that the Assistant Minister made a series of findings, the suggestion being that those findings were erroneously made. However, again, the applicant clarified in his oral submissions that the list of matters there specified were not put forward as findings made by the Assistant Minister but were put forward to the Court as matters going to the merit of the applicant's case. 29 Other matters going to the merit of the applicant's case or, in other words, the fairness of the non-revocation decision, were raised before the Court in the oral submissions made by the applicant. None of those matters are capable of demonstrating jurisdictional error on the part of the Assistant Minister and I need not canvass them any further. 30 Doing the best I can, I will address those matters raised by the applicant which did assert error on the part of the Assistant Minister and in relation to which some particularisation of the error was given in a manner sufficient to allow an understanding of the nature of the challenge made and thereby permit a consideration of it. 31 In his oral submissions the applicant asserted that the Assistant Minister had failed to take into account the best interests of his minor daughter. However, the best interests of the applicant's daughter were taken into account at [13]-[17], [76] and [79] of the Assistant Minister's reasons. A finding was made in favour of the applicant that it would be in the best interests of his daughter if the cancellation decision was revoked. The Minister did not dispute that the Assistant Minister was obliged to take the substance of the representations made by the applicant into account: Parker v Minister for Immigration and Border Protection [2017] FCAFC 115 at [21] (Siopis, Griffiths and Charlesworth JJ). I reject the applicant's submission that the Assistant Minister failed to give consideration to the substance of his representations on this matter. 32 It became apparent in the course of the applicant's submissions that in substance the applicant was complaining about the fact that the Assistant Minister had not, in the weighting process, accorded sufficient importance to this consideration. This is a separate question which I address later in these reasons. 33 The applicant then asserted that the Assistant Minister failed to consider that the applicant had participated in alcohol reform programs. The applicant's submission was based on the Assistant Minister's statement at [62] that there is "no evidence before me of any specific alcohol reform programs he has undertaken since 2013". In the absence of such evidence the Assistant Minister expressed a concern that the applicant would not be able to refrain from alcohol consumption in the future, and that, because of the nexus between the applicant's drinking and the applicant's offending, this increased the risk of the applicant re-offending (at [62]). It appears that the applicant's submission was ultimately directed to impugning that conclusion. 34 At [60]-[62] of the reasons, the Assistant Minister considered the applicant's engagement in various reform programs, including alcohol reform programs. At [60], the Assistant Minister set out the rehabilitation programs undertaken by the applicant. It is there identified that the applicant supplied a participation certificate for the "Tuning into Respectful Relationships" group program and "Positive Lifestyle Program" in 2016. That paragraph also records the applicant's assertion that he has completed a men's behaviour course in 2013 and has undertaken drug and alcohol counselling with Peninsula Health on an unspecified date. In his oral submissions, the applicant stated that drug and alcohol counselling formed part of the respectful relationship program for which a certificate was provided. 35 The statements by the Assistant Minster in the reasons need to be read in the context of the applicant's representations to the Assistant Minister and the material provided by the applicant in support of the request for revocation. The documents provided in relation to the "Tuning into Respectful Relationships" group program and "Positive Lifestyle Program" do not demonstrate that those programs were directed at drug and alcohol reform. Moreover, the applicant could not identify any material provided to the Assistant Minister that demonstrated his participation in specific alcohol reform programs. That is why the Assistant Minister states at [62] that there is "no evidence before me of any specific alcohol reform programs he has undertaken since 2013". In the context of the representations and material the applicant had provided, it was open to the Assistant Minister to make that finding. I reject the applicant's submission that the Assistant Minister failed to give consideration to the substance of his representations on this matter. 36 The applicant's third submission was to the effect that the Assistant Minister failed to give proper, genuine or realistic consideration to the applicant's submissions in support of revocation of the cancellation decision, and that this amounted to a constructive failure to exercise jurisdiction and a jurisdictional error. In particular, the applicant argued that the Assistant Minister did not give proper consideration to the best interests of his minor daughter. 37 The Assistant Minister was required to engage in a genuine and active intellectual process directed at that claim or criteria: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 (Gummow J); Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49] (Lindgren, Rares and Foster JJ); Carrascalao v Minister for Immigration and Border Protection [2017] FCA 608 at [35] (Griffiths, White and Bromwich JJ); AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[11] (Bromberg J). In making any such assessment a Court must exercise caution that its scrutiny does not slip into impermissible merits review: Minister for Immigration and Citizenship v SZJSS (2011) 243 CLR 164 at [26]-[33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). 38 The Assistant Minister's reasons as summarised above plainly demonstrate active engagement with the issue of the best interests of the applicant's daughter and the weight that this consideration should be given in his overall assessment of whether there was "another reason" why the cancellation decision should be revoked. 39 The Assistant Minister made a finding that it is in the best interests of the applicant's daughter for the cancellation decision to be revoked (at [17] and [76]). The Assistant Minister's reasons disclose that he gave this some less weight as the applicant does not have daily care and responsibility of his daughter, the age of his daughter and their capacity to maintain contact (at [17]). Nonetheless, the Assistant Minister's reasons state that he gave primary consideration to the best interests of the applicant's daughter (at [76]). 40 That the Assistant Minister ultimately concluded that the risk that the applicant posed to the Australian community outweighed the best interests of the applicant's daughter (at [78]) does not disclose an absence of active intellectual engagement with the material. There is nothing to support the applicant's contention that the Assistant Minister did not engage in a genuine and active and intelligent process in consideration of the claim. No jurisdictional error is demonstrated. 41 The applicant's fourth submission was that the Assistant Minister had considered that the risk of the applicant re-offending was low and that consequently it was irrational for the Minister to come to a view that the applicant presented an "unacceptable risk of harm" to the Australian community. The gravamen of the applicant's submission was that the Assistant Minister's conclusions as to the likelihood and risk of reoffending were legally unreasonable. 42 The applicant's written submissions identified findings made by the Assistant Minister which he contended supported the conclusion that the risk of the applicant re-offending was low. However, that description of the Assistant Minister's findings was inconsistent with the reasons and in his oral submissions the applicant clarified that those were findings that he submitted the Assistant Minister should have made, rather than did make. 43 The relevant authorities concerning the review of administrative decisions on the ground of unreasonableness were summarised in my reasons in BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 at [14]-[17]. I refer to those observations without setting them out again. For the reasons set out below, applying those principles in the present case, there is nothing apparent in the reasons of the Assistant Minister in this case that is legally unreasonable. 44 The Assistant Minister did not make a finding that the risk of the applicant reoffending was low. The reasons at [72] disclose the Assistant Minister's conclusion that there was an "ongoing risk" of the applicant reoffending. 45 The Assistant Minister's evaluation of risk comprised an assessment of the likelihood of the applicant re-offending, and an assessment of the gravity of what might eventuate were the applicant to re-offend. This is demonstrated in the structure of the Assistant Minister's reasons which, under the heading "Protecting the Australian Community" address "Criminal conduct" and "Risk to the Australian community" under separate sub-headings. Under the "Criminal conduct" subheading, the Assistant Minister had regard to the applicant's extensive history of criminal conduct over a period of 40 years in Australia and New Zealand involving violence, domestic violence and repeated driving offences, many of which offences occurred while the applicant was affected by alcohol (at [36]-[55] and [71]). As a consequence, the Assistant Minster considered the nature of the applicant's criminal conduct cumulatively as well as in several individual incidents to be "very serious" (at [55]). The Assistant Minister expressed particular concern about offences in the nature of domestic violence, which he described as being of great concern to the Australian community (at [35]). 46 It is apparent that the history of the applicant's criminal conduct provided context to the Assistant Minster's analysis under the subheading "Risk to the Australian community". In this section of the reasons the Assistant Minister had regard to: the personal history of the applicant; the influence that the applicant's personal history may have had on his substance and alcohol abuse issues and his anger management problems; the applicant's mental state and physical condition at the time of his recent offending; the steps the applicant has taken to rehabilitate; the applicant's expressions of remorse and insight into his offending; and the support the applicant has from his friends and family in Australia. These were factors generally in favour of the applicant. 47 However, the Assistant Minister also had regard to the applicant's poor history of taking advantage of opportunities for reform afforded to him by conditional liberty and non-custodial sentences. The Assistant Minister noted that the applicant's personal expressions of remorse, together with the positive influence of family support had not sufficed to prevent him from re-offending in the past (at [63] and [65]). In the absence of the applicant undertaking any specific alcohol reform programs since 2013, the Assistant Minister expressed concern that the applicant would not be able to refrain from alcohol consumption in the future. Given the nexus between the applicant's drinking and the applicant's offending, the Assistant Minister found that this increased the likelihood of the applicant re-offending (at [62]). 48 The Assistant Minister observed that the applicant had not taken heed of warnings by the Department for Immigration and Border Protection that the consequences of re-offending may jeopardise his status in Australia. Further, that the applicant repeatedly breached family violence orders and other judicial orders in a manner which indicated a lack of respect for Australian laws (at [67]-[68]). The Assistant Minister said that he could not be confident a further warning would serve as a deterrent for the applicant not to reoffend (at [68]). 49 Finally, the Assistant Minister had regard to a report prepared by a psychologist in June 2016 which stated that the applicant's prospects of rehabilitation appeared low and the likelihood of reoffending high at the time of assessment (at [69]-[70]). 50 It was in this context that the Assistant Minister determined that there was an "ongoing" risk of the applicant re-offending. Having regard to the structure and content of the Assistant Minister's reasons described above, it is evident that the Assistant Minister examined the offences committed by the applicant and concluded that the applicant was a repeat offender, that the applicant's offences were "very serious" and, by reference to his historical conduct and the current psychological evidence, that there was an ongoing risk that the appellant would reoffend causing harm to members of the Australian community. This is properly to be understood as a conclusion that there was a material and ongoing risk of the applicant reoffending. The Assistant Minister was under no obligation to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of the risk. It was open to the Assistant Minister to evaluate the applicant's risk of re-offending in the way that he did: BSJ16 v Minister for Immigration and Border Protection (2017) 252 FCR 82 at [44] (Collier, Murphy and Burley JJ) citing Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [71] (Rangiah J), Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41] (Rares, Flick and Perry JJ), and Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [44] (Flick, Griffiths and Perry JJ). 51 Having reached a conclusion that there was an ongoing risk of the applicant reoffending, and having regard to the gravity of the potential harm to members of the Australian community were the applicant to reoffend in a similar manner, the Assistant Minister concluded that the applicant represents an unacceptable risk of harm to the Australian community. In concluding that there was not "another reason" why the cancellation should be revoked, the Assistant Minster determined that the protection of the Australian community outweighed the best interest of the applicant's child and other considerations including his lengthy residence, bonds, employment and familial ties to Australia and the hardship for the applicant, his family and his social networks in the event the cancellation decision is not revoked. 52 There is nothing in the reasons of the Assistant Minister that could be impugned as legally unreasonable. On the contrary, the manner in which the Assistant Minister explained and weighed up the various matters demonstrated a clear process of reasoning leading to a logical and rational conclusion. The conclusion that there was not "another reason" why the cancellation decision should be revoked was clearly open to the Assistant Minister. It is true, of course, that other decision-makers might reasonably have reached a different conclusion on the merits, but that does not suffice to demonstrate that the decision of the Assistant Minister was legally unreasonable. 53 The applicant's fifth submission was to the effect that the Assistant Minister failed to give proper, genuine or realistic consideration to the applicant's submissions in support of revocation because the Assistant Minister had applied an inflexible rule of policy that applicants should fail. 54 In support of that submission, the applicant's written submissions outlined various statistics pertaining to the number of mandatory cancellation decisions that were made, the number of applications for the revocation of cancellation decisions that were made and the number of instances where a decision was made to revoke the cancellation decision in particular periods of time. The statistics presented by the applicant indicated that a decision in favour of an applicant to revoke a cancellation decision was only made in a small number of cases. 55 The source of those statistics set out by the applicant was not identified or established by evidence and I am unable to verify their accuracy. However, even if for present purposes I assume those statistics to be correct, I do not accept that jurisdictional error is demonstrated. As was correctly submitted by the Minister in oral submissions, the fact that the Assistant Minister has decided not to revoke a cancellation decision in a certain number of cases (the facts and circumstances of which are unknown), does not assist in determining whether the Assistant Minister has correctly applied the law and considered the applicant's representations in accordance with the law in this case. 56 Such raw statistical information would need to be accompanied by analysis of the individual decisions in order that the statistics were placed in a proper context. That analysis may reveal that many or all of the relevant decisions had been determined in accordance with the Act. This may reveal the way that the Act operates, but not that the Act has been misapplied. 57 I note that at the hearing I granted leave for the Minister to file supplementary submissions on this issue, and for the applicant to file a reply to the Minster's supplementary submissions. However, after filing its supplementary submission the Minister indicated that it did not seek to rely on that submission and it was unnecessary for the applicant to file a reply. 58 The applicant's sixth submission was that the circumstances in which the Assistant Minister made the decision, including the shortness of time in which he must have reviewed the material before him, meant that he could not have given proper, genuine and realistic consideration to the merit of the matter. 59 This submission appeared to be in the nature of the claim considered by the Full Court (Griffiths, White and Bromwich JJ) in Carrascalao. However, unlike in that case there was no evidence before me as to the circumstances in which the Assistant Minister made his decision other than that the Assistant Minister received the applicant's representations on 24 October 2017 and made the non-revocation decision on 25 October 2017. The fact that the decision was made within one day of the applicant's representations does not, in and of itself, support an inference that proper, genuine and realistic consideration was not given to the merit of the applicant's case. The applicant's submission must be rejected. 60 Finally, I note that in his further amended notice of application for judicial review, the applicant had alleged that the cancellation decision was invalid because s 501(3A) of the Act is invalid on account of purporting to confer judicial power on the Minister contrary to Ch III of the Constitution. This ground did not appear in the applicant's second amended notice of application for judicial review. In his oral submissions the applicant confirmed that he abandoned this ground following the High Court's unanimous decision in Falzon v Minister for Immigration and Border Protection (2018) 92 ALJR 201 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

CONCLUSION 61 The application must be dismissed. There being no submission made that costs should not follow the event, it is appropriate that the applicant pay the Minister's costs of the application. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.